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Save our NHS – 38 Degrees responds to Andrew Lansley

September 6th, 2011 by

There have been a number of comments today in the House of Commons and on few blogs about our NHS campaign. We have just sent out the following statement. Do share your thoughts and comments below.

Statement

It has been suggested by a few prominent supporters of the Health and Social Care Bill, including the Health Secretary Andrew Lansley, that 38 Degrees has misrepresented information relating to the Bill. That’s simply not true. We have not misrepresented information, deliberately or otherwise.

Responding to our members concerns, 38 Degrees has been running a campaign to protect the NHS since August 2010. 38 Degrees members have organised hundreds of local meetings, and signed the petition and contacted their MPs in their thousands.

At the conclusion of the NHS listening exercise, in June, 38 Degrees members made it a priority to scrutinise the revised set of NHS plans to confirm whether or not our earlier concerns had been addressed. Over 3,000 38 Degrees members donated to pay for independent legal advice. These donations enabled us to engage Harrison Grant solicitors and two specialist barristers, Stephen Cragg and Rebecca Haynes, to produce detailed advice.

38 Degrees members have been contacting their MPs and asking them to address the issues identified by our legal experts. Many MPs have responded to 38 Degrees members’ questions, and we are compiling MPs’ responses here.

All our summary documents, along with emails about the campaign, press releases and blog posts (including this one) have been checked for accuracy and signed off by our legal advisers. Obviously a short summary can’t include everything raised in over 50 pages of advice – so we’ve also made the full opinions publicly available so people can look at the details for themselves.

As we’ve seen MPs’ replies and criticisms of our campaign, we have addressed the points they have raised in consultation with our legal advisers. We have produced a detailed response to the points commonly raised by MPs here. We have responded to a briefing sent by health minister Paul Burstow to Lib Dem MPs here.

There seems to be a degree of confusion within government regarding competition law. In the briefing to Lib Dem MPs, Paul Burstow states that the government is “shielding the NHS from the worst excesses of competition” and has “put competition back in its box”. They have also stated that Monitor’s role in relation to Foundation Trusts will reduce the chances that they are considered as undertakings for the purposes of competition law. However the letter from Conservative MP Stephen Phillips, refered to by Andrew Lansley in the Commons today, states that “Competition law applies in the NHS now; it will apply in the future.” Further, Guy Opperman MP also seems to agree with this position. The Department of Health however, seems to take a rather different stance. It, rather confusingly says, “We have never said that competition law doesn’t apply to the NHS or that the Bill would prevent it applying. On the contrary, we have consistently said that competition law would apply where it applies, with or without this Bill.” They then accept that the position is legally uncertain before arguing that PCTs would not be considered to be undertakings for the purpose of competition law, thereby seeming to imply that competition law doesn’t currently apply.

It is clear from this tangle that there is uncertainty in the Government as to whether or not competition law does currently apply. Crucially, what is still missing from the debate is a detailed discussion of the potential impact of competition law on the NHS.

It is also worth noting that both Stephen Phillips MP and Guy Opperman MP, do not deal with the concern raised by the legal advice as to the increased administrative burden that arises as a result of procurement law applying to the newly created consortia.

On the removal of the duty to provide from the Secretary of State, Stephen Phillips MP and Guy Opperman MP agree with our legal advice. They then accuse 38 Degrees of misinterpreting the advice, whilst at the same time discussing the duty to promote in s.1(1), instead of the duty to provide contained in s.3 and s.1(2) of the 2006 Act. Our concerns relate to the abolition of the duty to provide and introduction of a hands off clause which is designed to promote autonomy – responses highlighting that the “duty to promote” is not being abolished therefore do not address these concerns. If, as is claimed by Guy Opperman in this regard, there is “no significant change” it begs the question as to why these reforms are being introduced.

We will continue to review criticisms of our campaign carefully. Where we identify new substantive points we will post up responses as soon as they are ready. This may take a little time, as just like all other pieces of material prepared by 38 Degrees as part of this campaign we want to ensure that information is accurate and has been checked carefully by our legal advisers.

As always, we’re committed to open discussion and debate. The concern of our members is to protect the NHS.

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  • Andy

    It’s Lansley that has misrepresented information relating to the Bill.

  • Innocent bystander

    It seems as if the two 38 Degrees Barristers and the two commentating barristers all agree that this Bill is not altering the present situation brought in by Tony Blair, whereby the NHS is subject to European Competition Law. If there is no change, that cannot be a basis for opposing this aspect on the bill per se. 

    If the position is “uncertain” as you suggest then I am sure that m’learned friends would happily receive instructions to litigate the interpretation. They do not seem to be encouraging that as a prudent course of action.

  • Lucy Neville

    Perhaps you should take a look at 38 Degrees response to the obfuscation and confusion over this.

  • Borderlands

    Just take a look at this:

    http://www.egovmonitor.com/node/43628

    Somebody got the time to refute the government’s refutations???

  • Andy

    Most of these myths are already refuted here:

    https://sites.google.com/site/nhsfuture/Home

  • Michael Gold

     There is no surprise in the statements from Lansley etc, politicians lie, it is in the DNA!!!

  • Anonymous

     it appears they want this rushed through? nigel farage MEP seems to think he’s not telling us about the EU?? missed some of the news so not sure what he’s hiding now.. what a sly man this is( cameron)

  • Anonymous

     You say in your 3rd para that you are scrutinising the revised set of NHS plans.
    Well I suspect you are referring to their latest “VISION” as no plans have ever been drawn up. That is why the NHS is in such a mess – not to mention all other government departments.

    The whole reorganisation of the NHS, just like ALL other departments, emanates from a treasury report which claimed to identify the potential savings.

    The NHS then drew up their “VISION” and titled the document NHS PLAN 2002. A new plan emerged almost every year or two.

    But they admit they had no intention to draw up a plan and to this day none exist only a “VISION”.

    The same goes for the infamous IT project now abandoned at a cost of £20BN. If it had been planned they would have realised the same as IBM that there was no hope of it ever working. No detailed specification was produced and no CPA – Critical Path Analysis [ a plan].

    So when you say you are scrutinising the set of plans you mean the last “VISION” which has yet to manifest.

    The “VISION” is the simplest and first step towards drafting a plan.

    The second is a detailed specification of all the parts.

    The next and most important is the CPA.

    So I fail to see how ANYONE can scrutinise a “VISION” because it is lacking any form. It is a bit like a mist – you can see it but you cannot handle it and you cannot see exactly where it starts or what shape it takes.

    So if you want to reORGANISE the NHS I suggest :-

    How can things progress and be flexible enough to adapt to the unforeseen ?

    Well ask ANY major company – You start with an idea based on experience and advice, which the Government call a “VISION”Then you sit down and draw up a SET of plans – which the Government have failed to do.First a skeleton plan – with a Critical Path Analysis. Then one for each major section – and so it goes down the line.You do not start with a minor branch plan and then develop the skeleton. Which is what they are trying to do.
    That is a bit like turning a pyramid upside-down and wondering why it keeps falling over.Identify a large national or international company that is run by the branches and not the head office – not one has been identified.So how do you go about reORGANISING the NHS or any other Government department ?
    You cannot do it by standing it on its head or by picking up huge sections and dumping them here and there.First look at the internal telephone directory of a large hospital like St James’s at Leeds. You will see there are numerous departments, many dependant on / serving each other. And if one or two are being run inefficiently it can have a knock on effect throughout the hospital.To give two very simple examples, when a laundry department had to tender against others, they had to identify all their costs which included the costs of the hospital engineers who maintained the equipment. The Laundry manager found he could get an outside contractor to do the work [to the same specification] for 66% cheaper.
    Some years ago a bonus scheme was introduced in the Estates department, on the assumption that they were only 30% efficient. One group of hospitals assessed that the building & engineering were 30%, then the engineers pulled out, so the building section [= 30% of the total work force] were reassessed at 97% . Well you do not have to be a mathematician to work out the efficiency of the engineers.So before embarking on a mass reorganisation, every department and in that I include every ward and every administrative department, should be assessed for its efficiency. Then every manager running less than 80% should be fired unless they can prove it is because of being over ruled of because of things out of their control.Then they should each be instructed to develop plans [CPA] to bring their department up to 95% / 100% and must compare their costs with others and private services available. All this they should have been doing – to be completed in less than 3 months.Also every profession should have a regional and national officer who’s task is to coordinate information and inspect for quality, cost and efficiency of all the units including private units on quality.That way the units are provided with a safety nett and there is the means of disseminating good practice – no one person has all the best ideas.
    So then you have all the existing units/departments running at their peak efficiency under the current conditions.Their Critical Path Analysis [CPA] will have identified reasons why they cannot improve and where they want / need to improve.Now you can look at a local situation in relation to that region and in relation to the national picture.Through out this exercise every level from the Government to the ward sister will have to draw up specifications for the services they draw on in order to provide their services and they will have to cost the service they provide to others.Now we come to PFI / private companies.The charge we put on our Government and local services is we want value for money. That means every service has to be specified and obtained at the best price, and that may not be the cheapest.Tendering is an art, it requires officers who KNOW their job, not just having a piece of paper saying they SHOULD know their job.First they have to be able to estimate the value of any contract within 5% and that has not to include numerous Provisional Costs, though it will include a contingency sum.
    Then they have to be able to draft a detailed specification.
    Then be able to vet suitable contractors and select a list of contractors on a rotating basis.
    Then be able to analyse and compare the pricing of the contracts
    Then be able to analyse the CPA the contractor provides.
    Then be able to manage the contract in relation to the CPA and specification.All this can be done by an in house office [ should be the duty of every head of department] or a contracted service but again if put out to contract a specification etc has to follow. Therefore you cannot avoid the use of an in house office and the cost of that should form part of the overall cost to the authority.You can now see that if all these steps had been followed :-P FI may not have been used.The NUMEROUS re shuffles of the NHS and other departments would have been conducted more logically and effectively.There would have been less major shake ups.The NHS etc would have developed an ever evolving program and be able to adapt as things change, instead of massive upheavals every few years. And it would stop – or minimise – political fingers getting in the pie.So with a full set of CPAs the head office stays in charge and at the same time local units can see where they fit in and can propose changes to their CPA in relation to changing needs.It was said at the Lib Dem conference that the NHS etc needs a structure – you cannot have a structure without a CPA and a head office that can tell a unit professional head of department to get their act together. Contract v In house, if in house is run correctly and the specification is drawn up correctly, the in house should always win. But do not expect the in house should win if they are not efficient.

  • Anonymous

    This bill, is holed under the water line. Taking the controle from Parliament is like having the largest cruise ship without a captain. It is doomed to fail just like all the other “VISIONS” sorry shake ups, sorry shuffles, sorry reorganisations. They do not know where to start and I doubt if they have even heard of a CPA. Just like with the economy they only listen to their banker friends – financial backers.

    We are already hearing of GPs directing patients to their private clinics instead of treating them on the NHS due to their greed. Cameron cannot say he was not warned.

  • Lucy

    Interesting about the GPs directing patients to private clinics (that they also work or organise). I was advised over a year ago (before Andrew Lansley proposed his bonkers bill) that hospitals were no longer offering certain minor ops but this was ok because the GP practice were taking these on.  I already knew this because this particular service was available at this GP practice over 10 years ago.

    Nothing particularly controversial you might think  – but- something might get lost in translation: perhaps, in future, hospitals will not readily do some procedures but has not explicitly removed them from their list of services. Also could this view mean there will peer pressure on an NHS contracted/paid for GP to stop providing these services too in their practice and instead do restrict it to those patients with ready cash?

    Or suppose treatment is/was offered in-house at a GP practise on the understanding that it would be free (and no time limit set). Surely it would be a reasonable expectation for the patient concerned that this should continue to be the basis of their treatment for this particular complaint. But what could they do if suddenly the GP said nope, pay up or you don’t get the treatment? Frightening.

    Even more worrying, and very likely, is that patients will not go to the doctor assuming they might have to pay. So a condition goes unreported (especially if there is little discomfort or no cause disfirgurement). Then the patient concerned could pay a very high price indeed – requiring hospital treatment…